What is the Difference Between Legal Separation and Divorce?
While a legal separation is uncommon, it is still used by some couples in lieu of divorces. There are several reasons why people choose legal separation instead of a divorce. In some cases, it may make more sense for a couple to become legally separated while in others, it may be better to file for divorce. Before deciding which you want to choose, it is important that you understand the differences between legal separation and divorce and the potential benefits and drawbacks of each.
Legal separation has some similarities to divorce but has some key differences. When a couple gets divorced, it terminates their marriage. Their property, assets, and debts are divided between them, and the court issues orders regarding child custody, child support, and possibly, spousal maintenance. When a couple chooses legal separation instead of divorce, it is a formal process through which a couple separates without getting divorced. The court will issue orders about the division of the property and debts, child custody and support, and possibly, spousal maintenance. However, the couple will still be married.
People who are legally separated still must answer that they are married on their tax forms and on other forms. They also are not free to marry other people since they are married. While many couples who get legal separations will eventually divorce, some choose to remain legally separated instead of getting divorced for a variety of reasons. If a legally separated couple does choose to eventually divorce, the orders from their legal separation will be incorporated into their divorce decree.
Why Would You Choose to get a Legal Separation Instead of a Divorce?
There are multiple reasons why people might choose to get a legal separation instead of a divorce, including the following:
- When divorce is against their religious or moral beliefs
- When a spouse has medical issues and needs to stay on his or her spouse’s medical insurance for coverage
- To continue eligibility for a spouse’s pension and certain types of Social Security benefits
- To have time to work on the marriage to see if things can be worked out
- To make it easier on children
- To preserve property rights in the event of the death of either spouse
Some couples choose legal separation because they are unsure if a divorce is what they truly want. A legal separation allows them to get formal orders from the court while they are separated. They can use their separation to see if they can work on the issues that have led to their separation. If they are able to do so, a legal separation can be reversed. Divorces cannot be reversed, and they free each spouse to marry other people.
How is Child Support and Child Custody Handled During a Separation?
Child custody and child support are handled in the same manner in a legal separation as they are in a divorce. The spouses can each submit their own proposed parenting plans that address parenting time and legal decision-making for the children. If the parents are unable to agree to a plan, they can present evidence about what is in the best interests of their children to the court. The court will then make a decision concerning where the children will primarily reside or if the parents will have co-equal parenting time.
Courts consider a number of factors when they are making child custody determinations in both legal separations and divorces. The factors that judges consider are found in A.R.S. 25-403 and include the following:
- The relationship between the child and each parent
- How the child relates to each parent, his or her siblings, and any other person who might have a significant impact on his or her best interests
- The child’s adjustment to the home, community, and school
- The child’s wishes if he or she is sufficiently old and mature enough to give his or her opinion
- Physical and mental health of everyone involved
- Which parent is likelier to encourage frequent and ongoing contact with the other parent
- Whether either parent misled the court to try to gain an advantage
- Whether child abuse or domestic violence has occurred
- Whether a parent used coercion or duress to try to get a parenting plan agreement
- Whether either parent has been convicted of falsely reporting child abuse or neglect
Child support is calculated using Arizona child support guidelines. The guidelines take into account the incomes of both parents, the needs of the child, and the amount of parenting time each parent has with the child. Under A.R.S. 25-501, all parents must provide reasonable support for their children. You can obtain an estimate of the amount of child support that you might expect to receive or pay by using the Arizona Judicial Branch’s child support calculator.
The orders regarding child custody and support will remain in place during the legal separation. If the parents later decide to divorce, the orders will still remain. Parents may file motions to modify child custody and support orders if their circumstances have substantially changed in the time since the orders were originally issued.
How is Spousal Maintenance Handled During a Separation?
If there is a large disparity between the incomes of the two spouses, and one spouse is unable to support himself or herself independently, the court may issue spousal maintenance orders. These orders are not automatic, and a spouse must request spousal maintenance. Even if a spousal maintenance request is made, there is not a guarantee that the court will order it.
Spousal maintenance in Arizona is rehabilitative in nature. This means that it is meant to help you to obtain the education or training that you might need to be able to get a job that allows you to support yourself independently. In many cases, spousal maintenance orders are issued for a set period of time instead of permanently. It may be issued for a longer period of time if the marriage lasted for a long time and the lower-earning spouse is unlikely to be able to enter the workforce because of his or her age or because of a disability.
How does Legal Separation Affect Me Financially?
While a couple is legally separated, they are still considered to be married. When they file taxes, they can either file them jointly or as married filing separately. They cannot file their tax returns claiming that they are single. Each spouse will still be responsible for their jointly held debts. The court may issue orders dividing the property, assets, and debts between the couple in the legal separation. When either spouse makes new purchases after filing their petitions for legal separation, those assets are considered to be their own separate property.
What if the Opposing Spouse Does not Want a Divorce?
If one spouse wants a divorce and the other does not, the spouse who wants a divorce may either agree to a legal separation instead of a divorce or may file for divorce anyway. Arizona does not require that both spouses agree to a divorce for people to get them.
Learn more from the Cantor Law Group
The decision to end a marriage or to obtain a legal separation is not an easy one to make. If you would like to learn more about legal separation and its potential benefits, it is a good idea for you to consult with one of the experienced family law attorneys at the Cantor Law Group. Call us today at 602.254.8880 for a free consultation.